These past few weeks I’ve been heads down writing up case studies of organizations and businesses across all sectors who have Creative Commons based open business models.

One of the great things about working at Creative Commons is the way my colleagues track and share news related to the work we do. Over the past few weeks music industry news and events have been most thought provoking. I thought I’d use this post to essentially think out loud about how music might work in a commons-based model.

Let me say up front that this is exploratory, out-of-the-box thinking. The start of taking learnings and approaches from the case studies I’m writing about and imagining how they might apply to the music industry. This is not some carefully thought through magic solution but rather an effort at using a few news stories to describe the current state of music as a business and then break free of the current industry model and define how a commons-based alternative might start from with a different set of principles while still generating a livelihood for musicians. Here are recent news items, stories, and initiatives I’m going to draw on:

This past week 160 artists and record labels signed a petition calling for a reform of the Digital Millennium Copyright Act (DMCA).

Here’s a copy of the actual petition:

Its a bit hard to read the small print so I’ve transcribed:

Dear Congress:

The Digital Millennium Copyright Act is broken and no longer works for creators.

As songwriters and artists who are a vital contributing force to the U.S. and to American exports around the world, we are writing to express our concern about the ability of the next generation of creators to earn a living. The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music. Aspiring creators shouldn’t have to decide between making music and making a living. Please protect them.

One of the biggest problems confronting songwriters and recording artists today is the Digital Millennium Copyright Act (DMCA). This law was written and passed in an era that is technologically out-of-date compared to the era in which we live. It has allowed tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish. Music consumption has skyrocketed, but the monies earned by individual writers and artists for that consumption has plummeted.

The DMCA simply doesn’t work. It’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application. The tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago. We ask you to enact sensible reform that balances the interests with creators with the interests of the companies who exploit music for their financial enrichment. Its only then consumers will truly benefit.

In my work at Creative Commons and the work around open business models I’m very much interested in seeing business models and economic approaches that reward creators. Earning a livelihood as a musician or creator of any type has gotten more difficult. In a digital age where copying is near $0 I’m looking for the artist to get a very large percent of every sale.

Historically creators have relied on intermediaries to represent them and distribute/sell their creations. These middle intermediary organizations (labels, collecting societies, and now tech companies) have often made riches off the work of creators sometimes at the expense of creators themselves. So I’m all for the artists calling this out and pushing for DMCA Reform that better protects their ability to have a livelihood. Artists themselves ought to be the primary beneficiaries of their work.

how is revenue split between the platform and the artist? I’m looking for higher splits to artists.

how is the split calculated? I’m looking for a deal that fairly acknowledges the value platform, artists, and users generate.

how does the platform factor Creative Commons into their business model? I’m looking for a key differentiation strategy.

how much is this about platform valuation and monetization, vs. advancement of creative culture, artists, public access, and the music community? I’m looking for the latter.

The details are so sparse with SoundCloud Go that I don’t get a sense of any answers.

I’m also interested in how SoundCloud Go compares with Spotify, Apple, Google, Tidal, Rhapsody, and other music subscription services on the basis of those questions. One of the things most frustrating is how opaque the actual business models are. There is very little transparency.

“How does the money get paid to labels and artists?
If the licensee has not cut a direct deal with the copyright owners, it can get a compulsory licenses which comes with a statutory rate as determined by the CRB judges and is paid to SoundExchange, an agency set up to administer payments. Those payments are split as follows: 50 percent to the master rights owner, which are typically record labels; 45 percent to the artist that recorded the music; and 5 percent to musicians, via their unions.”

Notice how 50 percent typically goes to the record label and how labels are typically the rights owner — not the artist.

I find it a bit hypocritical that labels, who have a long history of exploiting creators, are also signatories to this DMCA Reform petition. It seems to me they themselves are examples of “companies who exploit music for financial enrichment.”

I’ve been reading with great interest about British singer and songwriter Imogen Heap who as described here “is building what she calls a “fair trade” music industry that aims to sidestep middlemen like iTunes and Spotify and give musicians more ownership over the money and data produced by their work.”

I like the way her system makes the distribution of revenue completely transparent. Click on the Licensing tab on the site where her song Tiny Human is made available and view the Policies. Splits are transparent and the system flows the revenue directly through to all the musicians involved. I’m especially interested in the way she’s using blockchain to enhance creator autonomy and control over her works, including financial compensation, without the current reliance on third party intermediaries.

As I read all these stories I find myself thinking that everyone is still very much bought in to the idea that music is a commodity, a form of property, consumed by music listeners. This is how our current economy works, but as we’ve seen it results in inequity and siloed distribution of wealth. It anonymizes the relationship between creator and consumer. Rather than tweak this model I find myself wondering, “What might a commons-based solution to the current music industry might look like?”

Here’s a few thoughts on how commons-based thinking might change the model.

The second last sentence in the DMCA petition says, “We ask you to enact sensible reform that balances the interests of creators with the interests of companies who exploit music for their financial enrichment.” Notice how the interests of the public and music listeners are excluded. A commons based model would actually seek to balance the needs of the creators with the needs of listeners and the public.

I know in theory that government and copyright law is intended to act on the publics behalf while ensuring appropriate means of livelihood for the creator. But as this petition so aptly points out the current copyright law fails to do so and copyright legislation and its reform have increasingly been in the interests of “companies who exploit music for their financial enrichment” not in the interests of the creator or the public.

Copyright is based on the idea of personal ownership and property rather than communal shared resources. A commons based approach would see music not as the unilateral fixed work of a single artist but rather as a collaborative work that draws on all music that came before it and evolves through public use, enhancement, and innovation. More listeners, more use, more derivative works, these would not be seen as piracy but as positives.

A commons based approach is reciprocal. While others may use your works the same is true for you — you are free to build your music by innovating and making derivatives of others music. It’s a two-way street.

I really like the way theatre group Howlround, a knowledge commons by and for the theatre community expresses it. “A commons is a place to share the resources you have and take the resources you need. We believe that making art is more than a money game, that ticket sales for a live performance are just one piece of what it takes to claim success in our art form. Access and engagement are our highest values, and everyone, yes everyone, has something to contribute to the learning, the making, and the sharing of art.” Similar to Howlround a commons based approach to music would aim for access, engagement, and mass participation.

A commons based model would embrace the benefits of network effects where every use of the resource generates value not just for the creator but for everyone. A commons-based model would enable and celebrate remix as an integral form of creative expression and innovation, something that generates value to the original creator as well as the public.

A commons-based model for music would fully utilize digital affordances in a fair way. Today music exists in digital form. It is non-rivalrous and non-depletable. If I give you a digital copy of a song I have I still have the song. Digital based resources can be copied, shared, distributed and used at costs which approach zero dollars and at a scale that makes them increasingly accessible to the entire world. Rather than creating artificial scarcity by applying property and copyright law, a commons-based model would accept and build on digital attributes as strengths not weaknesses. The aim is not to curb abundance but to enable abundance.

The DMCA petition treats music as a commodity — an “export” as it says in the opening sentence. In a commons based model music would be seen as more than a commercial transaction. It would be seen as a social interaction involving the artist building community and working together to ensure livelihood and communal use. The public isn’t just a consumer of music — a passive music listener. Music is integral to our lives — we sing along with songs, we learn to play them ourselves, songs get associated with key life events, … Songs quickly enter personal and societal culture where they evolve in ways that advance the field of music. A commons based model would acknowledge and recognize this value. In a commons based model music is a shared resource managed by a community.

A commons based approach to music emphasizes relationship. The current music industry largely severs that relationship. In the current model music is a commodity purchased anonymously. But fans know that a digital copy of the song costs the industry close to $0. They also know that the majority of whatever they pay for a song does not go to the artist but to third party intermediaries. These two factors combined with the lack of any kind of relationship lead to free riding. A commons based approach would focus on music not as a commodity but as a relationship and community. A commons based approach would offer fans a means to pay artists directly and know that their support was going directly to the artist.

The cost of implementing and enforcing the current laws as expressed in things like the DMCA are huge. Digital rights management, content ID systems, digital locks, take down notices, suing fans, and gazillions of lawyers have not been enough. Instead of incentivizing creative works these laws and technology practices curb innovation, creativity, and freedom of expression. What if the money currently spent trying to enforce DMCA was instead spent on commons based models that help artists earn a livelihood?

But just how would a commons-based model provide a livelihood for artists? There are many ways and I urge more serious experimentation and thought around this. I acknowledge it’s not simple as the commons operates in a way distinctly different from the current free market approach. So focusing solely on sales and revenue forces a round commons based approach to fit into a square hole.

The open business models case studies I’ve been working on include three case studies related to music — Amanda Palmer, Jonathan Mann, and Tribe of Noise. All three have created a commons-based model that makes extensive use of Creative Commons while still generating a means of livelihood.

Amanda Palmer has mastered the Art of Asking. She releases all her music and writing under Creative Commons is a model for how commons based music involves community engagement. She’s blazed a trail exploring alternative means of earning a livelihood including passing a hat, crowdfunding through Kickstarter, and Patreon. She has over 7,000 patrons on Patreon who are willing to fund her creation of new songs, film clips/music videos, long-form writing, and more random, unpredictable art-things at over $30,000 per “thing”. She creates about one “thing” per month.

Tribe of Noise is a music platform that bridges both the commons and the commercial. Tribe of Noise helps musicians generate awareness and interest in their music by providing a community platform where they can upload their Creative Commons licensed music. Their platform also includes Noise PRO where musicians can upload music that could lead to a music deal secured by Tribe of Noise.

Let me also say that I’m not the only one imagining commons-based models for music.

The Berklee Institute for Creative Entrepreneurship recently launched the Open Music Initiative with a mission to: “Promote and advance the development of open source standards and innovation related to music to help assure proper compensation for all creators, performers and rights holders of music.”

I’m heartened to see the breadth of engagement underway by so many seeking to come up with a new model for the music industry. I’m hopeful that some of these efforts will arrive at a commons-based model for music that acts in the collective interests of the artist, the music community, and the public. I think everyone wants musicians to earn a livelihood.

Packed up my office at BCcampus, took down the artwork, threw away the small amount of paper archives I had, loaded up the pickup truck, and closed the office door behind me. Thus ends almost 9 years at BCampus – the longest I’ve worked anywhere.

Judging by whats in the truck it’s amazing how small a footprint I’ve had. A rug, an odd ToDo chair that has been my place of work (instead of a desk), and a lamp that I like beside me – especially in the dark rainy days of winter.

On the other hand I’ve been sent e-mails by many people across BC’s post-secondary system expressing thanks and saying I’ve been an inspiration. Oh my, maybe that footprint is bigger than I think. To be honest I’ve been surprised by what many people have said in their e-mails to me. I had no idea they felt that way or thought those things – in some respects I wish I’d known!

BCcampus has been an amazing learning experience for me and I’m grateful to my senior management team colleagues, the entire BCcampus staff, the Ministry of Advanced Education, and the broader network of connections I’ve made across higher education. I feel privileged to have had the opportunity to help create BCcampus and believe it has become a world class innovation that is both an inspiration and an accomplished provider.

My career has followed an adult learning and educational technology trajectory, for which there has been no career path. All of us in educational technology are inventing our own careers and so I’m particularly delighted with this most recent turn as my career path leads me to Creative Commons. I’m taking everything I’ve been doing at BCcampus and moving it up onto an international level where I hope to have more impact. I look forward to engaging with others who are adopting open willingly, strategically, and with some excitement.

I’ve written extensively in this blog about my own personal experiences with Open Educational Resources and with the open movement more broadly. I’ve come to see “open” as a fundamental change not only for education but for society and the world at large. I can imagine a world where the sharing efforts of all raise the bar on standards of living and create a new global economic future based not so much on growth but on better global use of collective works.

This blog has been quiet over the last few months as I’ve been dealing with the practicalities of wrapping up BCcampus work and making arrangements for my new role at Creative Commons*. I’ve also been fortunate enough to have some off grid time at Pacific Rim National Park near Tofino on the west coast of Vancouver Island where life was barefoot in nature, walking the beach, and riding boogie boards in the big surf. Time immersed in nature with no phone, no e-mail, no computer, no TV is wonderfully liberating and I came back rejuvenated and raring to go.

While I haven’t written much I have been following with great interest a number of significant developments including:

AUCC, ACCC, and Canadian university and college settlements with Access Copyright

UK and European adoption of open access requirements for publicly funded research

developments around Creative Commons version 4 and release of new Creative Commons license generator

Thought I’d get back in to the swing of things by writing a short synopsis on some of these:

AUCC, ACCC, and Canadian University and College Settlements with Access Copyright

Most countries have copyright collectives – organizations which collect royalties or payments from licenses, performances, and even blank media, for the ostensible purpose of distributing it to copyright holders, creators, or engaging in activities which benefit copyright holders or creators. In Canada we have Access Copyright. Back in June 2010 Access Copyright proposed new interim tariffs that would raise the fee they collect from post secondary institutions across Canada from about $5/student to $35/45 per student. Amazingly this was proposed without business case financial justification and without any disclosure of the catalog of works in both print and digital form that they represent. In addition Access Copyright expanded definitions of what a copy is in highly contentious ways and mapped out extensive reporting and access requirement expectations.

Access Copyright’s proposed interim tariffs, new copyright definitions and reporting requirements were met with widespread objections from CAUT, ACCC, AUCC, CLA, Canadian Alliance of Students, and others. I wrote about this development in Jan 2011 Access Copyright’s Royalty Demands Spark Interest in OER. By May 2012 at least 34 Canadian colleges and universities had opted out of Access Copyright.

In April 2012 the Association of Universities and Colleges of Canada (AUCC) reached an agreement with Access Copyright agreeing to interim tariff rate of $26. Amazingly this deal was struck secretly, behind closed doors, without communication with AUCC’s own members.

OK, let me see if I have this right, Access Copyright starts out saying the fee per student will be $35-45. They then negotiate agreements with various organizations for rates of $27.50, $26, and $10. The variation in rates is puzzling. There was no business case explanation for the initial interim tariff fee and there has been no explanation for the reduced fees. On what basis are these rates being set?

While I (and many others) are critical of the way Access Copyright is handling its mandate I want to be perfectly clear that I personally believe writers, artists, musicians and other creators should be fairly compensated for their work. An artists life is frequently one of poverty (aside from the mega hit makers) which I think undervalues their cultural importance. However, I question whether collection agencies like Access Copyright are really serving the needs of creators – a view somewhat substantiated by Brian Brett Speaks Out: An Open Letter on Access Copyright and the Canadian Copyright Emergency. Third party middle men intermediaries seem more intent on funding their own activities over those of the creator. As William Patry notes in his book How to Fix Copyright “The largest problems facing authors today are not unauthorized uses but the obstacles put in the way of buyers willing to pay for access to or copies of the work. I hope this changes as new web-based business models emerge that allow creators to get paid directly.

Passing of New Canadian Copyright Legislation

In June 2012 the Canadian House of Commons passed the Copyright Modernization Act Bill C-11 reforming Canadian copyright law. The new law has a significant impact on education expanding the conditions under which educators can use a copyrighted work without the permission of the copyright holder. Changes in the new act include:

Expansion of fair dealing to education, satire and parody. (Am I the only one who finds it deliciously amusing to find education lumped with satire and parody? I”m sure Canadian comedy shows like This Hour Has 22 Minutes and the Rick Mercer Report are pleased at the inclusion of satire and parody). Fair dealing allows educators to use copyrighted works for private study, research, criticism, review, and news reporting. There is no explicit definition of what fair dealing means. Essentially you have to use the Supreme Courts six criteria for evaluating fair dealing – 1. the purpose of the dealing, 2. the character of the dealing, 3. the amount of the dealing, 4. alternatives to the dealing, 5. the nature of the work, and 6. the effect of the dealing on the work. While these six criteria are useful, the lack of a clear definition means that for most educators fair dealing is, and will continue to be, vague and ambiguous.

Non-commercial user generated content. The new act distinguishes between commercial and non-commercial use. Non-commercial user generated content gives educators greater liberty to create instructional materials (within the parameters of fair dealing) as long as the use is non-commercial.

Internet publicly available materials. This exception gives educators permission to reproduce and communicate works that are publicly available on the Internet. This will be a major relief for educators who are increasingly tapping in to digital web-based content. Under the new act this educational use of publicly available Internet materials is allowed as long as the audience is comprised primarily of students and the works in question are 1. legitimately posted by the copyright holder, 2. not accompanied by a statement prohibiting such reproduction, and 3. not protected by digital locks. This provision makes Access Copyright’s assertion that even a hyperlink is a copy for which users must seek permission seem bizarre.

Public performances in schools. The new act allows instructors to display films and other media works in class, provided that the works have been acquired legitimately. This amendment lifts restrictions that required educators to acquire rights for public performance before they could show such materials. Coupled with the Internet publicly available material exception educators will now be free to include videos and other materials from sites like YouTube in their instructional materials.

Technology neutral display exception in schools. The old act limited allowable technology reproduction to an overhead projector. The new act is more technologically neutral allowing for display via video projectors and other technological devices.

Online transmission of lessons. The new act allows educators to create “fixations” (weird terminology given that a fixation often refers to someone with an obsessive attachment) of lessons and transmit these fixations to students over the Internet. In addition to weird language this exception has some strange requirements that are not particularly in line with pedagogical practice. The institution must destroy the fixation within 30 days after students have received their final course evaluations. And students are to be prevented from reproducing more than a single copy of the lesson for personal use which they too must destroy by the 30-day deadline.

While these changes give educators more permissions and clarity on what is allowed and not allowed I still think the best way to avoid the copyright minefield is to use Creative Commons openly licensed materials whereby the copyright holder explicitly gives permission. Using Creative Commons licensed resources removes the fear of litigation that shrouds copyright.

Canadian Supreme Court Ruling on Copyright Cases

In July 2012, amidst the tumult of copyright deals and reform, the Canadian Supreme Court made rulings on five copyright cases. These rulings were made using the old copyright act not the new one which has yet to come fully in effect. Reading these rulings was a breath of fresh air – clear lucid thinking well argued.

One area of ruling was around the nature of fair dealing. As described above fair dealing lacks a clear concise definition. Sam Trosow does a nice job of analysing pertinent Supreme Court considerations and findings related to fair dealing – see SCC decisions provide clear guidance on fair dealing policies. The ones that stick out for me are:

fair dealing is an important users right

teachers share a symbiotic purpose with students/users who are engaged in research or private study. Photocopies made by a teacher and provided to students are an essential element in the research and private study undertaken by those students.

“Private study” does not mean in solitude or geographically separate from the school. Students in a classroom can be engaged in private study.

Research can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.

Who knew that copyright had such high drama! Great potential for a TV series.

In tracking all of these copyright related activities I’ve come to appreciate the increasing involvement of the public and emergence of outspoken voices. I’m particularly thankful for the coverage and analysis the following people have provided:Michael GeistHoward KnopfSam TrosowAriel Katz

Expect I’m not the only one who has learned a lot from these people.

While I admire and appreciate the analysis the above people are providing I’ve been surprised by the lack of coverage of open licensing using Creative Commons licenses as a means of cutting through the complex and often vague rights and permissions of copyright. If educators want to completely free themselves from being encumbered by copyright complications they should use and produce Creative Commons licensed resources instead. Doing so simplifies matters enormously.

As more and more organizations develop copyright guidelines and tools for faculty and staff to use (such as this one at the University of British Columbia http://copyright.ubc.ca) I look forward to side-by-side workflow diagrams that compare the process you must go through to ensure you are allowed to use something under copyright vs the work flow process you must go through to ensure you are allowed to use something that is openly licensed via Creative Commons. The copyright workflow will inevitably be comprised of innumerable steps with many if/then branches leading to stop signs or legal counsel interpretations of possible risk. The Creative Commons license workflow will be one step or, in the case of non-commercial and share-alike versions, two or three steps, after which it’s clear sailing with no legal counsel intervention and no risk.

UNESCO Paris OER Declaration

I’m not the only one seeing the potential for open licenses and open educational resources to create new models of education. In June 2012 the World Open Educational Resources (OER) Congress took place in Paris, France. Organized by UNESCO and the Commonwealth of Learning (COL), the World OER Congress brought together Ministers of Education, human resource development representatives, senior policy makers, expert practitioners, researchers, students and others to:

1. Showcase the world’s best practices in OER policies, initiatives, and experts
2. Release a 2012 Paris OER Declaration calling on Governments to support the development and use of OERs
3. Celebrate the 10th anniversary of the 2002 UNESCO Forum that created the term OER

This Declaration is the result of a yearlong process, led by UNESCO and the COL with regional and online meetings and final negotiations at the Congress. The Declaration recommends UNESCO member States:

a. Foster awareness and use of OER
b. Facilitate enabling environments for use of Information and Communications Technologies (ICT)
c. Reinforce the development of strategies and policies on OER
d. Promote the understanding and use of open licensing frameworks
e. Support capacity building for the sustainable development of quality learning materials
f. Foster strategic alliances for OER
g. Encourage the development and adaptation of OER in a variety of languages and cultural contexts
h. Encourage research on OER
i. Facilitate finding, retrieving and sharing of OER
j. Encourage the open licensing of educational materials produced with public funds

Having received unanimous approval it will now be interesting to see how governments, institutions and other organizations adopt policies and practices in support of these goals. This is a whole new business model for education – one that brings with it social and economic benefits.

The Creative Commons Opportunity

Before going to start my new job with Creative Commons I thought I’d map out what I see as the opportunity sectors which are undergoing change through use of open licenses. I tend to think visually and create representations as one page visuals – here is what I came up with (you can click on this to make it bigger if you want):
Essentially I’m seeing activity and new public and business models emerge across:

That’s a lot of open. The opportunity is large. Use and impact has only just begun. I’m looking forward to doing my part to grow the commons and by so doing generate global social and economic benefits.

(* 0941176 B.C. Ltd. is a wholly owned subsidiary of Creative Commons, the sole activity
of which is to provide services to Creative Commons and is operated separate from the Creative Commons Canada affiliate.)

The Internet is a major source of innovation for both the economy and society. It enables entirely new forms of business, communication, and knowledge and plays a central role in changing repressive societies, creating global awareness, and forging relationships. The Internet provides us with a set of online freedoms.

It’s fascinating (and in many cases disturbing) to see governments attempt to modernize legislation from pre-Internet days and in some cases introduce new legislation seeking to leverage the Internet or control it. Yesterday, January 18, 2012 many of you may have experienced “blackout protests” when thousands of websites went dark in protest against two draft anti-piracy and counterfeiting bills in the US Congress.

Wikipedia’s web site featured this:

And today they posted the following thank you:

I thought I’d try and make sense of these protests. What are these bills all about? Why are legislators bringing them forward? Why are people protesting? How does it affect Canada? Is there similar legislation being brought forward in Canada? How does it affect me?

At this juncture in the evolution of the Internet rather than embracing the innovations the Internet is bringing many legislators seem intent on curbing it.

In the US two draft anti-piracy and counterfeiting bills are currently being reviewed in the US Congress. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). SOPA is intended to fight online trafficking in copyrighted intellectual property and counterfeit goods. PIPA is intended to give the US government and copyright holders tools to curb access to “rogue websites dedicated to infringing or counterfeit goods”, especially those registered outside the U.S. These bills are in response to the perceived problem that piracy is having a large negative impact on US content industries.

It’s interesting to compare the list of those supporting SOPA with those opposing SOPA. Supporters of SOPA represent the movie, music and publishing industries while those opposed are primarily from the technology, public interest, and human rights groups. These lists themselves are interesting as they establish a kind of public transparency and accountability for what is happening.

There are several major problems legislators face in creating legislation of this kind including:

I find it disturbing that with all these legislative bills the economic benefits of a few are superceding the public benefits of many. These bills seek to control and limit freedom as is so eloquently expressed in my colleague Scott Leslie’s Short Poem About SOPA.

But for me its not just about control and freedom its about optimizing the use of technology. Much of what I see happening is seeking to break or disable technology in order to enforce old business models. I’m dismayed when I see technologies hobbled for economic gain. See Publishers vs. Libraries: An E-Book Tug of War for example. When David Wong says in his brilliantly funny 5 Reasons The Future Will Be Ruled By B.S. that “The future is going to hang on whether or not businesses will be able to convince you to pay money for things you can otherwise get for free.” I’m really hoping he’s wrong. In the digital world the incremental cost of distributing digital goods is next to zero. Creating business models based on artificial scarcity is sheer folly and fails to leverage the innovation that technology and the Internet bring.

If we truly are interested in improving our economies and societies we’d be well served to focus on how we incentivize the production and use of creative works not curtail them. We’d be better off looking at how we maximize access and use not limit it.

Its even happening at the city or municipal level. The city of Sao Paulo in Brazil has decreed that all educational resources paid for by the city need to be Open Educational Resources (OER) licensed using Creative Commons license.

Its not just happening at the national, provincial, and municipal levels its happening at the organizational and institutional levels. The National Autonomous University of Mexico, better known as UNAM, has said it will make virtually all of its publications, databases, and course materials freely available on the Internet over the next few years. This is to include all magazines and periodicals published by UNAM, research published by UNAM employees, and online access to theses, dissertations and its approximately 300 undergraduate and graduate courses. The UNAM Online initiative seeks to achieve open access, public and free to all products, collections and digital developments of the university. This move is seen as part of the university’s mission. A way to give back to society what it is doing with its financial support. A way of being open, accountable and transparent.

Its not just publications, research, theses and other content that is going open, 2011 was the year that open pedagogies including Massively Open Online Courses (MOOC) were adopted by mainstream big name institutions. A Massively Open Online Course is typically taught by faculty at an established institution to tuition paying regular students but is also open to enrollment by anyone interested for free. Only the tuition paying students receive accreditation. MOOC’s have been around for a while (see here and here) but this year saw the following fascinating examples:

Digital Storytelling DS106 – Jim Groom’s University of Mary Washington DS106 is an open, online course free to anyone who wants to take it. You can join in whenever you like and leave whenever you need. Participants develop skills in using technology as a tool for creative self-expression, building a digital identity, and critically examining the landscape of communication technologies. The 2011 version of this course invented a free form live streaming course radio station as a new form of teaching and learning. This course starts up again in January 2012 in case you’d like to sign up.

In the fall of 2011 Stanford Engineering professors offered three of the school’s most popular computer science courses for free online as MOOC’s, Machine Learning, Introduction to Artificial Intelligence, and Introduction to Databases. The Introduction to Artificial Intelligence course generated over 100,000 enrollments and had to be capped. Students taking the course for free watch video lecture recordings, read course materials, complete assignments and take quizzes and an exam. What online students don’t receive, however, is one-on-one interaction with professors, the full content of lectures – or a Stanford degree.

In late December MIT announced MITx which aims to let thousands of online learners take laboratory-intensive courses, while assessing their ability to work through complex problems, complete projects, and write assignments (see FAQ). As with other MOOC style offerings students won’t have interaction with faculty or earn credit toward an MIT degree. However, for a small fee (yet to be defined) students can take an assessment which if successfully completed will provide them with a certificate from MITx. Whether this turns out to be anything more than the form letters Stanford’s faculty provide non-enrolled students who complete the course remains to be seen. But, imagine this scenario. A student signs up for a free MITx course, completes the assignments, pays the assessment fee and receives a certificate indicating successful completion. That student then decides to apply to and enroll in MIT proper. Would that certificate be accepted by MIT as transfer credit or would they force the student to retake the entire course?

Museums and libraries are going open. Check out the Commons on Flickr to see how libraries and museums are openly sharing what have been hidden treasures in the world’s public photography archives, and how they are openly sourcing public input and knowledge into making these collections even richer. The Commons on Flickr openly shares photos where “no known copyright restrictions” exist, such as:

The copyright is in the public domain because it has expired;

The copyright was injected into the public domain for other reasons, such as failure to adhere to required formalities or conditions;

The institution owns the copyright but is not interested in exercising control; or

The institution has legal rights sufficient to authorize others to use the work without restrictions.

I think of these collections as partially open. The rights statements of participating libraries and museums are full of statements like; “It is your responsibility to determine what permission(s) you need in order to use the Content and, if necessary, to obtain such permission.” Not particularly helpful or encouraging of reuse. No where near as clear as Creative Commons licenses. However, I do really like the way they are seeking public input into the cataloging and data associated with these images. See No. 47. Crew member taking a movie of ice berg from the ship, Greenland, 1939 for an example of how Smithsonian images are being shared through the Commons on Flickr and how public input is improving the collection. It’s particularly heartening to see the Smithsonian directly interacting with end users.

In November 2011 Wired announced that all Wired.com staff-produced photos will be released under a Creative Commons (CC BY-NC) license in high-res format on a newly launched public Flickr stream. In making the announcement Wired notes; “Like many other sites across the web, we’ve benefited from CC-licensed photos at Wired.com for years — thank you, sharers! It seems only fitting, and long overdue, to start sharing ourselves.”

Its great to see these examples of open leadership happening at the national, provincial, municipal, institutional, and organizational level and it makes me wonder – Is open going viral? Is open going mainstream?

There is growing government interest in seeing resources produced through tax dollars be publicly accessible. Governments at all levels are using policy and legal frameworks to open up access to publicly held information, promote transparency, and enable wider economic and social gain. These are all factors every government and their electorate are interested in.

I think of open textbooks as low hanging fruit. One of the most compelling open education initiatives to undertake. Open textbooks have a clear value proposition for students, parents, educators and public funders. CK-12’s flexbooks are totally impressive for the fact that they are Creative Commons licensed and for the simple way you can assemble a book as a .pdf, an e-book, or html and embed it in an LMS. And then there is Saylor’s Open Textbook Challenge which is offering a “bounty” of $20,000 if you submit your textbook to them and it is accepted for use in their course materials. I expect we’ll see open textbooks for high enrollment undergrad courses across the board.

While I’m interested in the full range of ways in which open principles are being used I’m particularly interested in how they apply to education. Governments could establish policy that requires public funds for education to result in education resources openly accessible to the public. Some governments have provided funding for development of educational resources under agreements that have the IP and copyright for those resources resting with the government. Governments could easily convert all these legacy educational resources to Open Educational Resources (OER) by simply using an open license like Creative Commons.

The guidelines for government include:
a. Support the use of OER through the revision of policy regulating higher education
b. Contribute to raising awareness of key OER issues
c. Review national ICT/connectivity strategies for Higher Education
d. Consider adapting open licensing frameworks
e. Consider adopting open format standards
f. Support institutional investments in curriculum design
g. Support the sustainable production and sharing of learning materials
h. Collaborate to find effective ways to harness OER.

I look forward to seeing these policies adopted around the world, used at the national, provincial, municipal, and institutional level, and applied across all of education.

For public government, public service agencies, and not-for-profits open policy is a perfect fit. For the most compelling and articulate description of its obviousness I highly recommend you listen to Cable Green’s Sloan-C presentation The Obviousness of Open Policy which he gave in November 2011 (advance to time index 10:25 and click on the 4 arrows in the upper right corner to go full screen). In a digital world the potential is there for open to become a widespread win/win de facto policy with benefits for governments and citizens. The most amazing thing of all is that government support for open can happen at the policy and guidelines level without any additional funding. It’s hard to imagine why any entity serving the public interest wouldn’t adopt open policies when open can clearly generate social and economic benefits.

People who tweet and use social networks appreciate openly engaging others in solving problems or providing advice. The New Einsteins Will Be Scientists Who Share explores this potential for science. Even Scientific American is in on the act with their citizen science site. I expect we’ll soon see national organizations responsible for research establish open innovation as an essential aspect of research agendas.

As might be expected there are a growing number of practices and technologies emerging to support this kind of open engagement. Knowledge in the Public Interest is using the concept of a JAM‘s for open engagement. A JAM is a a non-linear moderated discussion of fixed duration that is part creative brainstorming, part active dialogue, and part focus group. In a JAM participants share experiences, knowledge, and ideas, and collaborate in search of actionable responses to complex issues. It’s interesting to note that Knowledge in the Public Interest’s customized version of Moodle and its JAM process are similar to what BCcampus has been doing for years with its customized Moodle SCoPE seminars.

Idea Scale is another interesting example. The recently launched US initiative Digital Promise is using Idea Scale to generate and tackle “grand challenges” to spur breakthrough technologies that can help transform the way teachers teach and students learn. You can see grand challenge ideas submitted so far in Idea Scale here.

In education, Learning Management Systems are largely closed walled off online learning environments that require passwords and logins for entry. It was a welcome surprise then when in October 2011 Blackboard announced a series of new initiatives to provide greater support for open education efforts. Working with Creative Commons, Blackboard now supports publishing of open educational resources (OER) across its platforms. Support for OER enables instructors to publish and share their courses under a Creative Commons Attribution license (CC BY) so that anyone can easily preview and download the course content. Blackboard also updated its policy around fees so that there are no extra charges associated with sharing courses with outsiders such as other educators, auditors, or prospective students. Blackboard says it wants to help institutions share the content of their courses with larger, online audiences. When a technology vendor like Blackboard starts to support open then you know open is past the idea stage and going mainstream.

Given the growing personal use of open licenses by end users it makes sense for governments to do the same. Open will flourish when bottom-up grassroots efforts toward open take place in an environment supported top-down by policy.

photo by Deborah Stacey

My own work at BCcampus around OER has been an example of that synergy. Government Ministry of Advanced Education support for faculty development of online learning resources has been provided with the caveat that the resources be open and shareable. I’ve written about this initiative extensively elsewhere in this blog (see here, and here, and here) so thought I’d shine the light on a couple of other 2011 developments that add credence to the growing sense of open going viral and the synergy between policy and grassroots adoption.

In the US the Obama administration initiated the Trade Adjustment Assistance Community College and Career Training (TAACCCT) Grants Program out of the US Department of Labor. The first round of TAACCCT grants made available and awarded in 2011 totals $500 million but a total of $2 billion over four years has been committed. This example of government commitment to open is the largest I know of and I hope others are inspired to follow suit. TAACCCT provides eligible institutions of higher education with funds to expand and improve their ability to deliver education and career training programs that can be completed in 2 years or less, and that result in skills, degrees, and credentials that prepare program participants for employment in high-wage, high-skill occupations, and are suited for workers who are eligible for training under the TAA for Workers program. TAACCCT funds are capacity building grants strategically targeted to assist workers adversely affected by trade agreements. All TAACCCT initiatives are expected to meet accessibility and interoperability standards and produce OER licensed using Creative Commons (CC-BY).

Wayne Mackintosh and the Open Educational Resource Foundation (OERF) in New Zealand have been doing just an amazing job of bringing to life the OER university (OERu). Here’s how the OERu is described:

The OER university is a virtual collaboration of like-minded institutions committed to creating flexible pathways for OER learners to gain formal academic credit.

The OER university aims to provide free learning to all students worldwide using OER learning materials with pathways to gain credible qualifications from recognised education institutions. It is rooted in the community service and outreach mission to develop a parallel learning universe to augment and add value to traditional delivery systems in post-secondary education. Through the community service mission of participating institutions we will open pathways for OER learners to earn formal academic credit and pay reduced fees for assessment and credit.

The concept of an OERu gained widespread support and made incredible progress over the 2011 year. Institutions from around the world have become OERu founding partners including:

These founding partners represent Canada, USA, New Zealand, South Africa, Australia, and India. For OERu to have attracted the interest and involvement of this many partners in a one year period is impressive. I’m particularly encouraged with the breadth, depth and reputations of these partners. It’s worth pointing out that the OERu openly invites other institutions to join. I expect many additional institutions from all around the world will join the OERu and follow the early leadership these founding anchor partners have shown.

Perhaps the most impressive thing of all with OERu is that all of this has been planned and published openly on Wikieducator with invited and included participation from people all over the world. Got ideas you’d like to contribute to the OERu? Log on to the wiki and add them – input from all is welcome. OERu is not only about opening education its modelling how to do planning and development in an open and inclusive way. For the OERu, open is not just about content – its about all aspects of education, it seeks to engage and benefit all people everywhere, it’s a way of working. Outstanding!

photo by Deborah Stacey

Against this backdrop of growing global momentum and critical mass around open, 2011 has been a pivotal year of open for me personally too. Here’s my own personal 2011 top 10 open highlights:

#2. Award of grants for the 2010 BCcampus Online Program Development Fund which supports partnerships of BC public post secondary institutions in their development of online learning curricula as OER. This was the eighth consecutive round, the longest running publicly funded OER initiative I know of, bringing the cumulative 2003-2010 investment to $9 million. Kudos to BC’s Ministry of Advanced Education for its early foresight and willingness to back open over all these years.

#3. One of OER’s holy grails is reuse by others. I think there is a dearth of understanding about just what people think this means but this past year several significant events happened around OER developed in BC being picked up and expanded by others elsewhere. I find these examples fascinating as they represent real-life examples of what happens as OER mature. The University of British Columbia’s Virtual Soil Science Learning Resources are a great example of an OER initiative that started in BC and has expanded. The additional institutional partners brought on over time contribute to improving existing learning resources, developing new learning resources, and use existing virtual soil science learning resources for courses in their own institutions. I enjoyed helping bring together soil scientists in India with the core UBC team to further expand the work through an international partnership.

When someone says to me OER reuse I think about this – the formation of distributed social networks of faculty and students collectively working on shared curriculum.

Royal Roads University has a wonderful Open Educational Resources site and Mary Burgess, the lead for this initiative sent me an e-mail in November 2011 saying:

“We’ve had some exciting developments on our little OER project of late that I just had to share with you!

And today, we found out that 2 of our Moodle customizations are being made part of Moodle core in version 2.3.

Finally, I had an email from a guy at the University of Madrid yesterday who is using another one of our Moodle patches.

We are over the moon that our work is of use to others!”

I love that last statement. It is exciting to see the work you openly share be of use to others.

#4. Consortium of BCcampus, WICHE, CCCS, North Island College, College of the Rockies and institutions in Montana, Wyoming and Colorado awarded Gates Foundation funded Next Generation Learning Challenges Wave I $750K grant for the North American Network of Science Labs Online. Especially momentous for me was the workshop we did at North Island College in Courtenay BC where over 50 educators, faculty and edtech specialists participated in a demonstration of the Remote Web-based Science Lab and in discipline panel discussions around the biology, chemistry and physics OER courses and labs this project is creating. This project is exciting and yet another example of an OER project that has been unfolding over several years in BC expanding outward and increasing impact through additional partners.

#5. Moodle Moot Canada 2011 keynote “Talking About All Things Open” with Terry Anderson, Stephen Downes, Gavin Hendrick and myself. Terry Andersons’ description of open scholarship was a key idea for me. I also got a blast out of openly engaging all conference attendees in crowdsourcing the Future of E-Learning.

#6. Open4Learning Educational Technology Users Group Workshop in Nelson BC. An awesome program exploring the diverse aspects of open in education from a BC perspective.

#7. OERu. I’ve described this initiative in some detail earlier in this post. It’s been fascinating to see this initiative evolve over 2011 and to be an active participant and facilitator in helping define what it is.

#9. University of Northern British Columbia Opportunity Side of Open talk, workshop on Finding and Using OER, and ABC Copyright Conference Especially enjoyed the conference Talkshop session exploring issues related to recent Access Copyright efforts to increase tariffs which caused many institutions to withdraw from Access Copyright and giving a keynote, the Opportunity Side of Open Part 2 which includes suggestions for actions faculty, students and institutions could pursue if they embrace and adopt open as a key aspect of their work.

I’ve received some inquiries from people as to whether I’ve evolved the University of Open concept. The answer is yes. Some of what I’ve been working on are these suggestions for actions faculty, students, and institutions could pursue if they embrace and adopt open as a key aspect of their work. I’ve been thinking about what people would do, how they’d behave, if they were committed to the University of Open. Here’s a brief synopsis of possible actions:

Reward (performance) and support (policy & funds) open access research publishing

Generate and publish open data around learning, scholarly activities, and outcomes/achievements

Create unique identity and establish value by extent of open activity and global benefits

#10. BCcampus Opening Education event. It’s really great to see in followup to this event that BC’s Electronic Library Network at their December meeting began planning initiatives around OER, open textbooks and a copyright course for faculty and students in 2012. I think librarians can make a huge impact on open and will play a much more central role in the way it plays out in education over the coming years.

photo by Paul Stacey

Going in to 2012 I see big opportunities for open to unfold on a larger scale. Summarizing calls for action from the above I hope:

Governments, municipalities and institutions adopt open policy and licenses

Legacy resources held by governments, municipalities and institutions are openly licensed

New grant funds for development of educational resources use open licenses

Faculty and students at the individual level automatically license their resources openly

International consortia form around the development and enhancement of open educational resources

For many “open” is not even on their radar screen. For others open is present but fragile. Still others think ‘Open-ness’ is growing, but in ways that are not quite what was anticipated by the more dedicated proponents of OERs. I agree with this last statement and hope I’ve depicted some of the breadth of ways open is growing in this post. I think open is past the tipping point. This year even institutions who were not early adopters began to find ways to be participants. I think there are even more people and organizations on the sidelines looking for a way to enter the field.

As is apparent from this blog Creative Commons licenses are critical enablers of open. 2012 will be Creative Commons’ tenth anniversary. I’ve been imagining ways I’d improve Creative Commons. Everyone in the Open Educational Resource (OER) space has been wanting some way for tracking reuse. I think this could be enabled through the license although I’d frame it differently. I think we should be tracking attribution which is a condition of all Creative Commons licenses. Ideally creators receive attribution notification when others reuse their work – like pingbacks, or trackback in social media. Its motivating for creators to know that their work is having an impact and valued by others. Tracking attribution will generate a means of showing impact akin to research citations. My colleague Scott Leslie has done some work around tracking OER reuse and I’m also intrigued by the Total Impact work Heather Piwowar is involved with.

I’ve also been thinking of the potential to go “beyond permissions to intentions”. Let me explain. Creative Commons licenses do a great job of complementing copyright by providing a mechanism for creators to express permissions they accord others in terms of use of their work. However, what is missing is any expression of creators intentions. Are they giving permissions and don’t really care how its used? Would the creator like to see derivatives of their work that others create? Is the creator really interested in finding others who want to collaborate with them on the continuous improvement of the work? This latter intention is in my view critical to the long term success of OER. All open initiatives succeed over the long term based on the size and vibrancy of the open community that gets built up around it. I really wish there was some means of expressing creator intentions so that others reusing the work can do so in ways that fulfill creator aspirations.

So in summary I see Creative Commons licenses as having three components:

Attribution – this component would make explicit how users are to provide attribution to the original creator and send the creator a trackback indicating attribution/reuse.

Intention – this component would express the creators intention in making the work available through Creative Commons and provide a means for subsequent users to support those intentions.

I’d like to see each of these three functions embedded in the license and available to creators and subsequent users with one click. One of my big interests is in increasing the value proposition for creators.

This blog post provides a body of evidence on the many ways open expanded in 2011. I’d like to close this blog by celebrating one form of open that happens every year at this time – the way Christmas opens the human heart. Merry Christmas all.

Proposed new copyright laws, confusion over what is allowed and isn’t allowed under fair dealing, Access Copyright’s attempt to increase tariff’s, risk adverse legal counsel advice, universities and colleges pulling out of Access Copyright. Has all this got your head spinning?

In parallel to the changing regime of copyright new open licensing and sharing practices have emerged.

As part of Open Access week BCcampus and partners are hosting an Opening Education event on October 17 to explore how the practices of Open Access research publishing and Open Educational Resource (OER) course content have emerged as complementary and creative alternatives to traditional copyright practices. Join us in this exploration of how creators are using digital open licenses to essentially clear copyright upfront in such a way that sharing and reuse by others is pre-authorized and encouraged.

We’ve created an Opening Education micro-site at http://open.bccampus.ca. This site provides a means for online registration and provides information on the location, speakers agenda, and associated resources. The event will take place face-to-face at Simon Fraser University’s Woodwards campus in downtown Vancouver and be simultaneously webcast over the Internet. The webcast will be recorded and posted to the micro-site for reference after the event.

The event features a wide range of speakers representing organizations who are actively engaged with open access and open educational resources. Presenters include:

Joy Kirchner, Scholarly Communications Coordinator, University of British Columbia Library

Paul Stacey, Director Curriculum Development, BCcampus

Resource links on the micro-site are grouped to portray the range of activities each of these speakers and organizations are pursuing around open access and open educational resources. We encourage you to explore the resource links in advance for orientation.

Here in Canada a Canadian Copyright Licensing Agency called Access Copyright has been operating since 1988. Access Copyright establishes licensing agreements that provide users with the ability to copy from millions of copyright protected materials while ensuring over nine thousand creators and publishers are fairly compensated. Access Copyright license agreements have traditionally been for the rights to photocopy books, magazines, newspapers and other publications. Access Copyright licenses this content through a combination of agreements with other rights licensing agencies and the Canadian divisions of global publishing companies.

These rights have been essential to education institutions where instructors photocopy either parts of publications or entire articles and provide them to students as course materials. Access Copyright estimates that 250 million pages of textbooks and other materials are being copied every year in Canada’s primary, secondary and post-secondary sector.

Access Copyright has been charging Canadian provincial governments, school boards, colleges and universities an annual tariff amounting to over $30 million a year. As per Copyright Board of Canada the tariff is charged on a per student basis and works out to about $5.16 per student.

All of this is subject to major change in the context of the digital age where reprography via photocopying is becoming increasingly obsolete. Copyright is a hot topic and organizations like Access Copyright, who have not traditionally been securing digital rights from creators and publishers, are faced with some significant challenges.

In the digital age there is a growing belief that rights are better handled directly by creators without using third party intermediaries like Access Copyright. In addition, in the US and Canada, there are allowable exceptions to copyright called fair use in the US and fair dealing in Canada. Access Copyright cannot charge licensing fees to content that educational institutions have a right to access for free.

All this hit the fan when in June 2010 Access Copyright submitted to the Copyright Board a Statement of Proposed Royalties to be collected by Access Copyright from post-secondary institutions for the years 2011-2013 for the reprographic reproduction in Canada of works in its repertoire. This statement covered digital copies and proposed a tariff of $45 per student for universities or $35 per student for all other educational institutions. The statement specifies conditions regarding digital copies and details extensive reporting requirements.

The statement caused an uproar on many fronts.

The Canadian Federation of Students together with the Canadian Association of University Teachers objected.
The Canadian Alliance of Student Associations objected.
The Association of Canadian Community Colleges objected.
The Association of Universities and Colleges of Canada objected.
The BC Association of Universities and Institutes objected.
The Government of Alberta objected.
And on and on.

In all over 101 objections were submitted. Interestingly Access Copyright response to the objections was to ask the Copyright Board of Canada to dismiss all of the objectors except AUCC and ACCC.

For some a key objection was the dramatic increase in per student charges.

Dave Molenhuis, National Chairperson of the Canadian Federation of Students said in a press release. “The proposal treats students as cash cows and ignores the fair dealing rights granted through the Copyright Act and affirmed by the Supreme Court of Canada.”

Amazingly, from my point of view, in asking for the increase in tariff from $5.16 to $45/$35 per student Access Copyright hasn’t submitted any financial justification or business case rationale for the increase. Nor have I seen anything that says they have acquired the digital rights to works or that the creators and publishers they represent want them to act as digital work intermediaries on their behalf.

If this is a cash grab its worth following the money. How does Access Copyright collect and distribute royalties?

Access Copyright publishes a schedule of distribution payments. Of the $30 million it collects Access Copyright holds back 20% (~$6 million) to cover its own administration and a further 1.5% (~$450,000) which goes to Access Copyright’s cultural fund which goes to promote and support Canadian culture through the provision of grants intended to encourage the development and dissemination of published Canadian works.

Howard Knopf notes that Access Copyright budgeted $3.1 million for lawyer and other professional fees in 2010 and that with 1.5 million students registered in universities and colleges in Canada if the new tariff goes through Access Copyright’s revenues from universities and colleges alone jumps to about $60 million.

Access Copyright’s distribution of royalites specifies that two thirds of Access Copyright royalties go to the rightsholder based on Access Copyright having actual knowledge that their copyright protected work was copied under an Access Copyright license. Licensees (eg. colleges and universities) are required to provide full reporting including complete bibliographic information on all the works they copy, including the number of pages they copy and the number of times they copy these pages. Royalty payments are made to rightsholders of the works appearing in these reports.

One third of Access Copyright royalties are collected for copying impossible or impractical to collect information. This portion of the tariff is calculated based on the number of full time employees or an operating budget scale. Access Copyright distributes these royalties 50/50 to publishers and creators.

I don’t think anyone objects to publishers and creators getting fair compensation for their work. However, colleges and universities are currently operating in highly constrained financial circumstances. Furthermore tuitions and student debt has been rapidly escalating. Going digital ought to reduce costs not increase them but Access Copyrights tariff seems intent on going in the other direction forcing institutions and students to bear the burden of costs for which its made no justification.

Unreasonable royalty fees were not the only objections. For me the best summary of objections have come from the Canadian Library Association (CLA). CLA’s objections include:

Failure to recognize existing user rights and exceptions

Overly inclusive and inapplicable definitions

Unreasonable royalty fees

Unwarranted anti-circumvention provision

Unreasonable conditions placed on the use of repertoire works

Unreasonable reporting requirements

Unreasonable requirements of access for Survey purposes

CLA’s letter of objection concludes:

“Access Copyright‟s tariff seeks to require payment of an unreasonable amount of royalties for the use of works well beyond its previous licenses, beyond the scope of their legitimate remit under the current law and without regard to the rights of education institutions under the Copyright Act and applicable case law. In addition, it imposes onerous and often unenforceable new conditions on educational institutions and requires actions from them which may well be in contravention of existing legislation and contracts. CLA urges the Copyright Board not to approve any tariff without substantial changes in accordance with these objections and without a significant reduction in the royalty rates.”

I’m not going to go into every one of these objections but let me highlight just a couple more. In addition to unreasonable royalties another area of contention is around the breadth of Access Copyright’s definition of a copy. The three most contentious definitions of a copy Access Copyright included in their statement are:

projecting an image using a computer or other device

displaying a Digital Copy on a computer or other device, and

posting a link or hyperlink to a Digital Copy

Claiming that a hyperlink is a digital copy is a good example of how excessive Access Copyrights claims are. Linking and displaying are not part of Canada’s copyright act and as such are not subject to copyright tariff. Teachers, students, institutions and taxpayers should not have to unnecessarily pay millions of dollars per year to exercise rights that they already have. It appears that Access Copyright is overstepping its mandate as it tries to move in to the digital sphere.

In an era where everyone is used to acquiring digital works through services like iTunes it seems ludicrous, at least to me, that the process Access Copyright proposes to use for tracking and collecting tariffs is essentially manual, labour intensive and place the onus entirely on the licensee to fully disclose every copy it makes. For example if an instructor emails students a digital copy of a document the educational institution is required to compile a record and report back every such e-mail.

One can only hope that the Copyright Board of Canada will bring some reason to all this and balance Access Copyright’s efforts to generate dollars for the creators and publishers they represent with the rights of the Canadian public for fair access. However, in December 2010 they approved Access Copyrights request for an interim tariff and amazingly conclude this announcement by saying: “This decision is being issued without reasons because the Board considers this matter to be urgent.” Yikes that doesn’t come across as a good example of public accountability.

In light of all this some institutions are deciding to no longer be Access Copyright licensees and instead to go their own way. Athabasca University has announced it will not renew the Access Copyright license and in doing so says they plan to “make more extensive use of open educational resources (OERs), material such as lectures, texts, lessons and podcasts produced by other universities and made freely available for use. Where the use of OERs isn’t possible, the university will approach copyright holders directly for permission to make use of their work.”

Here in British Columbia the University of British Columbia’s position regarding Access Copyrights new tariff can be found here. As part of its response and its desire to take a lead on promoting responsible use of copyrighted material UBC is developing a License Information Database which answers many questions students and instructors have about using the Library’s resources.

The University of Northern BC, like Athabasca, has decided they will not renew the Access Copyright license. UNBC has invited me to give presentations there in early February helping faculty and staff explore the alternatives. I’ve agreed and submitted the following as what I propose to do.

Presentation #1
Title: The Opportunity Side of Open
This presentation will explore the opportunities associated with converging forces of open source software, open access research publishing, open government/data, open educational resources, and open pedagogies. The combined impact of these “open” initiatives is of growing strategic importance in higher education as institutions look for alternative and creative ways of enhancing their education offerings through digital technologies. (For more on this see my University of Open blog post.)

Within this larger strategic context of open particular emphasis will be placed on the potential of open educational resources as a creative alternative to traditional Access Copyright sourced course materials. Intellectual property, copyright and licensing aspects of open educational resources will be described and demystified. Open educational resource examples from within BC and from around the world will be used to illustrate the rich and diverse range of resources already available for free and immediate use.

Tips on sourcing open educational resources and using them in whole or in part will be provided including urls, web sites and search engines. This presentation will conclude with opportunities for Q&A and dialog with the presenter about the opportunity side of open. An applied/hands on session will follow providing more in depth opportunities for participants to explore, discover, and dissect open educational resources pertinent to their academic domain of interest.

Presentation #2
Title: Finding and Using Open Educational Resources
This session takes concepts and ideas from the first presentation and moves them into a practical and applied context. It is structured as a guided exploration of how to find and use open educational resources. Using web-based open educational resource aggregators and repositories participants will be invited to find and select resources pertinent to their academic field of study and instruction. Searching, previewing and downloading resources will all be demonstrated. The potential to use open education resources for everything from a course supplement, to a course component, to a complete course, to curricula for an entire credential will be explored. Benefits associated with open education resource use from student, instructor and institution perspectives will be discussed. Open education resource license obligations such as attribution, and share-alike will be described. Open educational resource technical format, instructional design, and quality aspects will be considered. This session will conclude with an overview of current trends and directions associated with open education resource development and use around the world.

Its important to acknowledge that going your own way is not an effort to avoid paying appropriate rights fees. It simply means that the model being proposed by Access Copyright is not appropriate, especially for digital works.

So what are the alternatives? Here are the ones I see:

Not all copying is a contravention of the copyright act. The Fair Dealing copyright exception allows copying portions of works for the purpose of study.

Use site database licences that librarians already have in place

Use open access licences to scholarly research

Negotiate licenses directly with creators or publishers

Use open educational resources and public domain materials

I’ve written widely about open educational resources elsewhere in this blog and think that openly licensed materials hold great potential as a significant alternative.

What do you think about Access Copyrights statement of proposed royalties?